I think it fair that over such an issue as this, given the comments that are to follow, that I start my post with a upfront statement of my view.

I oppose a three-strikes law - I'm pretty comfortable with our jury system, and a system that allows judges who have heard all the evidence to ... um ... actually judge. With any system so rigid as to require, in all instances, a set sentence for an offence, there will undoubtedly be injustices. The closest I think I could come to supporting a three-strike law would be one in which the option of a harsh sentence for a third offence was available to a judge. Which doesn't really count, because that's pretty much already the case.

But this is not your standard three-strikes law. Many – probably most – of the arguments arrayed against the three strikes law in California, and those in other US States, simply do not apply. Indeed, the Sensible Sentencing Trust’s David Garrett claims to have gone to the US, and met with organisations actively campaigning for changes to their draconian legislation. He says a law like his draft bill is what these groups are fighting for, and it is a claim with some merit. It’s still a three-strikes law, but on the spectrum of laws with mandatory life sentences at the third strike this bill is squarely at the liberal end.

The proposed law does not count as a strike every “felony”, but only a very small subset of mostly serious ones. Petty theft will never see you in prison for life, as it has for some Californians. Indeed serious thefts, and burglaries won’t bring you within the regime.

The proposed three strikes law has undergone a number of iterations. It still appears in an earlier form on the Sensible Sentencing Trust's website. On the form of bill on that site, the offences which can count as strikes are:

Sexual Violation (section 128 of the Crimes Act 1961)

Murder (ss 167 & 168)

Manslaughter (s 171)

Wounding with intent (s 188)

Injuring with intent (s 189)

Injuring by an unlawful act (s 190)

Aggravated wounding or injury (s 191)

Aggravated assault (s 192)

Assault with intent to injure (s 193)

Assault on a child, or by a male on a female (s 194)

Cruelty to a child (s 195)

Disabling (s 197)

Discharging a firearm or doing a dangerous act (s 198)

Using any firearm against a law enforcement officer etc. (s 198A)

Commission of a crime while using a firearm (s 198B)

Acid throwing (s 199)

Poisoning with intent (s 200)

Infecting with disease (s 201)

Providing explosives to commit a crime (s 272)

You can see that the list was small. Attempted murder wasn’t a strike, but smacking was (section 194 is the provision under which parents face prosecution following the amendment of section 59).

To those who doubt that commenting on a 'blog can change anything, I offer this thread on John Ansell's 'blog as proof . Someone finally looked beyond bland assertions and promised to fix it up – if you’re designing a three-strike regime, and intending it to apply only to serious violent offences, whatever your thoughts on the criminalisation of smacking, it doesn't belong among them.

Late last year I obtained a copy of the bill in a more recent form by emailing the Act Parliamentary office. Hopefully, I’ve succeeded in attaching it to this post (it may be pretending to be audio). Section 194 was still in – I imagine it no longer is – but there had been some changes. Section 198 was gone, and there were – I might politely call them drafting instructions – to add attempted murder and manufacture of or possession of mephametamine (sic) for supply (why not all class A drugs?).

But it is still instructive to look at what was missing. Indecent assault was not there. The various crimes relating to sexual abuse of children were missing; even attempted sexual violation (i.e. attempted rape), and assault with intent to commit sexual violation weren’t there ('though assault with intent to injure – far less serious – was). Robbery and even aggravated robbery – despite being offences of serious violence – were also missing.

I imagine that some of this has changed. I do not know what, although I understand the bill was introduced under urgency this afternoon: it's not yet available in the usual places.

Apparently, on the bill's introduction, it received

a report from the Attorney-General as inconsistent with the New Zealand Bill of Rights Act. Sentencing someone to prison for life, to serve at least 25 years, for offending that might carry a maximum sentence of at most three years (e.g. assault with intent to injure) is pretty likely to run into problems. And for some of the offences which count as strikes in the drafts I have seen – I think particularly of injuring by unlawful act – it would be ludicrously draconian. Injuring by unlawful act can result from very serious actions, but it is also a charge which can result from non-lethal hunting accidents, or the mis-labelling of the peanut content in foodstuffs.

But I shouldn't be too harsh on the bill. Even if it passes (in the supply agreement support was promised only as far as select committee) it will be some time before it takes effect. It is entirely prospective. Unlike its American counterparts, no offence committed prior to the law's enactment counts as a strike. I imagine it would be at least a decade before anyone is even eligible for sentencing for a third strike (except perhaps for violence in prison). They will have to commit a specified offence, and be sentenced normally, commit a second specified offence, and be sentenced for it as a second strike, and upon leaving prison commit a third specified offence, before facing its full wrath. We've passed retrospective criminal legislation before (home invasion sentencing rules were introduced for the purpose of getting not yet convicted criminals longer sentences), but this isn't it.

I don't want to understate the problems of a mandatory three-strike system. On the drafts I've read, it could result in great injustice even on the second strike. On the publicly available drafts, a second strike

results in the maximum sentence applicable to the offence (e.g. if the second strike is for injuring with intent to injure then the penalty would be the maximum of five years, if it was wounding with intent to cause grievous bodily harm, the sentence would have to be 14 years). But if the second offence was manslaughter, or possession with intent to supply methamphetamine, it would result in a life sentence. And given that even the Sensible Sentencing Trust thinks manslaughter should sometimes result in leniency, I wonder how they'd view their own bill if a single strike was hanging over a Bruce Emery.

This is obviously the main problem with any mandatory sentencing law – there are just some offences, even though they are covered by the same section of the law, that are just less serious than others. Manufacturing a kilogram of methamphetamine is obviously worse than selling a few points of the stuff, but a second strike for either is a life sentence. Janine Rongonui's 150+ stab manslaughter of Pheap Im is obviously worse than Bruce Emery's killing of Pihema Cameron, and both are worse than a manslaughter charge that might result from dangerous driving. Both meth charges, and both homicides, are serious, but they aren't the same, and any two injuring with intents or two wounding can differ greatly too. It is only just that the law treats them differently.

But I'm also not going to pretend that this proposed law is anywhere near as bad as any of the three-strikes laws in the US. And if someone is opposing it by pointing out life sentences that resulted from stealing chocolate chip cookies or golf clubs, you can pretty much ignore what they have to say. The draft law I've seen only applies to specified offences

(and some of the really problematic ones can probably be removed), not theft or burglary; it doesn't bring decade-old convictions back from the dead; it doesn't allow the first and second strikes to occur in the same offending; and it doesn't allow multiple third strikes to make the penalty life with a minimum non-parole period of 50 years. These are the problems Californian opponents of their state's three-strikes law will point out, and the Sensible Sentencing Trust has assiduously avoided all of them.

*Updates*
I've been adding further information on the bill as introduced when able in the comments thread. There's a bit to go, but it seemed sensible to provide links here to my more informative posts:

It seems to me that the best that can be said for three strikes laws is that they ostensibly recognise that repeat serious offending is more culpable than the sum of its parts - they reflect the idea that there must be a price for repeatedly refusing society's invitation to change. I think you're right to say that the major objection is that people would receive sentences that the seriousness of their actual offending may not warrant.

I wonder whether there is a better way to recognise the concerns that motivate these sorts of proposals, even if that takes us to familiar differences about the value of retributive justice, the prospects of genuine rehabilitation, the rights of victims and potential victims, and the effectiveness of our criminal justice system. All of which I'm curious like to know more about.

After hearing the reports on the radio this morning I was hoping for a thread called "the public worse". Because surely this represents a far more backward development for the country than the much reviled s92a? Just throwing it out there.

What a can of worms this opens up! Some aspects have even entered the language as aphorisms, e.g. ‘might as well be hung for a sheep as a lamb’. Perhaps its proponents would like to bring back transportation? IANAL, but it seems to me that the logical framework of our legal system is undergoing change. For a long time we have had trial and sentencing principles that require those involved to ignore prior crimes and deal with the present problem in isolation, but now a defendant’s judgement history becomes integral to sentencing (and therefore, necessarily, trial procedures). Not just ‘three strikes’, but also the traffic ticketing points system operate this way, so no doubt other areas will follow (repeated bankruptcy, perhaps?). We may get more consistent sentencing out of this development, since anomalies show up more vividly as Graeme points out, but we will also get all the ills which the previous system took great care to avoid.

I understand this bill is better than the CA version and claims of life for stealing candy are silly.

On the other side how silly are claims that 70 people would not have been murdered if this bill was already law?

What bugs me is this bill seeks to allow politicians to decide sentencing instead of judges. While I accept not all judges are created equal I have a greater trust in a judge to be sensible than a politician.

The other issue for me is the question "is this really the most effective way of reducing crime?"

So what is the logic in using the magic three number, aside from the baseball metaphor? Was there analysis done as to the average number of serious crimes/other committed? Perhaps we should consider who the target of this law is, the average numbers of crimes they commit etc, then determine if three offences is appropriate.

Failing that I'd vote for something that co-opts "hitting someone for six", assuming it doesn't mean hitting them with a bat six times

The Three Strikes Bill reminds me of the Degrees of Murder Bill, which Act supported, back in the '90s. Although initially supportive, I ended up agreeing with the reasons for the DoM to be dumped. Similar lessons of over-proscription to be learned here.

In fairness to the disastrous Californian 3 Strikes regime, at least it removed the moral hazard in picking and choosing the offences which would apply. For example, why are no white collar crimes included in the Bill? Is less societal harm caused by a repeat fraudster who wrecks the lives (and savings) of thousands, than by an aggravated assaulter?

There's also the threat of future amendment. There is nothing stopping a future government from loosening the criteria for Three Strikes to kick in. Pardon the thin wedge cliche, but it's true.

It is noteworthy that the drafting of this Bill has been outsourced to the psychotic sector. I am sure this will not be the only Bill to be provided by vested interests. We can only hope that it gets the scrutiny it deserves in Select Committee.

Graeme, an excellent analysis. I'm pleased that the Bill is nothing like as draconian as the legislation in the US. What worries me, however, is that this may only be a start, and that the usual law-and-order mob will start clambouring for additonal offences to be added to the 3 strikes list - like, say, every 3 years.

My more fundamental objection is that NZ's incarceration rates are already among the highest in the developed world. Do we really need to be throwing more people in prison?

I think Garret used aggravated robbery in his example 'scumbag' case in his speech on the bill, which would imply it was in there.

It is there.

Of course, it was being used as an example a few weeks before I received my Parliamentary draft, and it was till missing from that.

It is noteworthy that the drafting of this Bill has been outsourced to the psychotic sector. I am sure this will not be the only Bill to be provided by vested interests.

I very much doubt that was the case, having now seen the official bill. The SST had a draft bill which they quite liked. It had a bunch of problems (smacking, automatic life sentences for some second strikes, an odd selection of crimes it didn't apply to - child sex abuse, attempted murder, etc.).

This Government bill doesn't have those problems. The SST version of the bill (ignoring something like smacking, or injuring by unlawful act) was on the liberal end of three-strikes laws. The version we actually got emasculates it even further.

Not my area of expertise. However, I'd note that as drafted this bill it is difficult to see how this law would result in there being more people being thrown in prison. Rather, it will result in some people who would already have been thrown in prison, being thrown there for longer.

The bill is quite a bit less draconian than the drafts I'd been working from. Still draconian, and still worth of a report under section 7 of the New Zealand Bill of Rights Act, but without a number of the issues I raised.

So what has changed?

1. The list of specified offences has grown. Some have gone, but more have been added.

Gone:* injuring by unlawful act (thank goodness)* injuring with intent to injure* aggravated assault* assault with intent to injure* assault on a child or by a male on a female* disabling* cruelty to a child* poisoning with intent* infecting with disease* providing explosives to commit a crime

These offences formed the lower end of the SST's list. Missing too is the proposed inclusion of dealing with class A drugs.

If this - an increased prison muster in 15 years time, was what was being complained about, then the complaint is reasonable. I had understood "throwing more people in prison" to mean sending people there who wouldn't otherwise be.

Sending someone to prison for six months = 1 person thrown in prison.Sending someone to prison for life without parole = 1 person thrown in prison...

I find this kind of bizarre. Surely people guilty of these are more in need of intensive psychiatric treatment than 25 years in prison? Especially given that all the various permutations of statutory rape are included separately.

My major problem with the bill is that it seems intended to make people feel better about crime without actually addressing any real problems. Okay, that and the fact that David Garrett and his posturing about the crime wave we're supposedly drowning in irritates me extensively.